State v. Cunningham

525 So. 2d 44, 1988 La. App. LEXIS 216, 1988 WL 6747
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1988
DocketNo. CR87-685
StatusPublished
Cited by1 cases

This text of 525 So. 2d 44 (State v. Cunningham) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cunningham, 525 So. 2d 44, 1988 La. App. LEXIS 216, 1988 WL 6747 (La. Ct. App. 1988).

Opinion

DOUCET, Judge.

Defendant, Earnest Cunningham, was charged by bill of information with three counts of molestation of a juvenile, a violation of La.R.S. 14:81.2. The alleged acts of molestation involved defendant’s three stepchildren. Following trial by jury, defendant was found guilty of two counts of molestation of a juvenile and one count of attempted molestation of a juvenile, a violation of La.R.S. 14:27 and 14:81.2. On the two counts of molestation, defendant was sentenced to serve four and one-half years at hard labor with the sentences to run concurrently. On the count of attempted molestation, defendant was sentenced to serve five years at hard labor. The sentence was suspended and defendant was placed on supervised probation for five years with special conditions.

FACTS

At the time the offenses were committed the defendant was living in a mobile home [46]*46in Jeanerette with his wife, Deborah, and her three minor children from a previous marriage. The names of the children and their ages at the time of defendant’s arrest were: Jane, seven, Tim, six, and Mark, four.1

On April 25, 1985, Mrs. Cunningham noticed Mark manipulating his genitals with his hands inside of his trousers. She questioned him, and, subsequently, the two other children. It came to light that the defendant had been molesting Mark, Tim, and to a lesser extent, Jane, for some time. The next day, while defendant was working, Mrs. Cunningham and the three children moved out of the trailer into her mother’s home. A subsequent investigation led to defendant’s arrest.

At trial, Mark testified that at night when he was in bed sleeping, the defendant would come in the room, pull down his bedcovers, remove his pajamas, and pinch, play with, and suck his (the child’s) penis. He also stated that the defendant would place his own penis in his (the child’s) mouth. According to Mark, the defendant would do these things to him a lot and that he told him not to tell anyone about it or he would whip him. Shown a male doll, Mark pointed out the doll’s penis for the court. He ended by stating that no one told him what to say in court.

Tim also testified that when he was in bed asleep (he slept in the same room as Mark) the defendant would come in, pull down his pajamas, and place his mouth on his (the child’s) penis. He also stated that the defendant would place his own penis in his (the child’s) mouth. However, the child stated that he would be asleep when this latter activity occurred and that he only knew it happened because the defendant told him after he awoke. Tim testified that the defendant did these things to him often and that he warned him not to tell anyone or he would whip him.

Tim was shown a drawing which his mother had previously identified as one that he had made and shown to her approximately one week after the incidents of molestation came to light. Tim confirmed that he drew the picture and that it depicted the defendant “sucking” his (the child’s) penis and himself “sucking” the defendant’s penis. Tim was also shown a male doll and identified the penis. He also concluded his testimony by stating that no one told him what to say in court.

Jane testified that the defendant came to her while she was in bed asleep and put his hand under her nightgown and touched her. Shown a female doll she pointed to its vaginal area when asked where the defendant had touched her. Jane stated that the defendant threatened to whip her if she told anyone about him touching her. She remembered defendant doing this to her on only four occasions. She ended by stating that she was telling the truth.

Mrs. Cunningham testified that before the incidents of molestation became known, she and the defendant got along well. She described him as a good person, a loving husband, and a good stepfather. However, she had no reason to doubt the veracity of her children’s testimony. She stated that there was never any pornography around the home and that she never had sex in front of the children. She could not think of anything which would have influenced the children to fabricate these allegations.

The defendant flatly denied doing any of the acts alleged. In an attempt to establish a motive on the part of his wife to have the children fabricate these stories, the defendant testified that he once informed her that she would not get to spend any of the proceeds he expected to receive from a lawsuit for personal injuries. He claimed her response was, “Watch me.” Mrs. Cunningham did not remember having such a conversation.

The jury found the defendant guilty of the molestation of Tim and Mark, and guilty of the attempted molestation of Jane. On appeal he cites three assignments of error.

[47]*47ASSIGNMENT OF ERROR NO. 1:

Defense counsel’s first assignment of error asserts the trial court erred in denying defendant’s motion for a continuance based upon the state’s failure to disclose medical and psychological examinations upon the victims of these purported crimes. On July 9, 1985, a motion for discovery and inspection was filed by defense counsel. In paragraph five of the motion, defendant requests disclosure be made of any books, papers, etc. which are favorable to the defendant and which are material and relevant to the issue of guilt or punishment. Paragraph six requests that defendant be allowed to inspect and copy any reports of physical or mental examinations made in connection with this case which are in the possession, custody, control or knowledge of the district attorney.

On July 30, 1985, answers to the motion for discovery were filed on behalf of the state. In response to paragraphs five and six of the motion, the state responded it had no such information. The trial of this matter was scheduled for June 16, 1986, a Monday. On Friday, June 13, 1986, the district attorney’s office, through counsel for the defendant, learned of the existence of reports prepared by Dr. Walter Scott and Dr. Henry Lagande in connection with this case. Upon learning of the existence of the reports, the district attorney’s office obtained copies and immediately provided defense counsel with copies.

Because these reports were obtained on the eve of trial, defense counsel filed a motion for continuance on the grounds of inability to develop information contained in the reports due to the timing of their disclosure. Defense counsel’s motion for continuance was denied by the trial judge for several reasons. First, although the reports were in the custody of a state agency, the Department of Health and Human Resources, the district attorney’s office could not be “bound by the knowledge of what’s in every state agency.” The district attorney’s office was unaware of the existence of these reports until defense counsel informed the district attorney’s office of their existence. A second reason given by the trial judge for denying the motion was that, given the defense counsel’s knowledge that the children had been examined, defense counsel could have made efforts to obtain the reports.

La.C.Cr.P. art. 712 states “a motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” A trial judge’s ruling on a motion for continuance will not be reversed except upon a showing that he abused his discretion and defendant was prejudiced by the ruling. State v. Knighton, 436 So.2d 1141 (La.1983).

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Related

State v. Gallow
680 So. 2d 729 (Louisiana Court of Appeal, 1996)

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Bluebook (online)
525 So. 2d 44, 1988 La. App. LEXIS 216, 1988 WL 6747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cunningham-lactapp-1988.